The author
of this paper is an attorney in Hilo, Hawai`i. In 1998, he
filed two suits challenging the U.S. Navy testing of a low
frequency sonar system on whales. In 2000, he filed a third
suit challenging the Navy's continued spending on development
and deployment of the system despite the absence of a final
environmental impact statement.

Overview:

In the
early 1980s, the U.S. Navy identified as a special threat
the new, quieter generation of submarines being built by the
Soviet Union. The undersea passive sonar systems deployed
throughout the world by the U.S. Navy supposedly would not
be able to detect these new submarines.

The Navy
conducted a review of available technology and selected the
alternative of low frequency active sonar as the best response.
The Navy made this decision without preparing an environmental
impact statement ( EIS ) on the potential damage this technology
could cause to the ocean environment and ocean life.

The Navy
proceeded to design, engineer, fabricate, and test this system
in remote areas of the world. The Navy took the position that
these tests did not need permits under the Endangered Species
Act
( ESA ) or the National Environmental Policy Act
( NEPA ). The Navy's internal documents reveal that the Navy
was well aware that the low frequency sounds might be harmful
to cetaceans. The entire development and testing process took
place in secret.

In 1995,
the Natural Resources Defense Council discovered the program
and wrote the Navy a letter citing numerous laws being violated
by the development and testing program.

In 1996,
the Navy agreed to prepare an EIS for the system, known as
SURTASS LFAS. As part of preparing the EIS, the Navy also
agreed to perform a Scientific Research Program ( SRP ) for
low frequency active sonar ( LFAS ). Dr. Peter Tyack of the
Woods Hole Oceanographic Institution participated as a member
of the SRP team.

In the
three phases of the SRP, the research revealed that whales
diverted from their normal migration routes to avoid the sound,
that whales ceased singing in response to broadcasts of the
sonar, and that whale songs changed after broadcasts. The
testing took place at broadcast levels thousands of times
less than the levels to be used by the Navy during routine
operation of the system.

In 1998,
the SRP conducted research off Hawai`i under a permit from
the National Marine Fisheries Service ( NMFS ). These tests
resulted in numerous reports from whale watch captains and
shore observers that the Humpback Whales fled from the test
area. A snorkeler exposed to a broadcast emerged from the
water with symptoms a doctor compared to a trauma patient
in a hospital. A separated Humpback Whale calf and a separated
dolphin calf appeared during the testing. A separated melon
head whale calf appeared shortly after the testing.

Based
on this evidence and other reports of adverse effects, various
groups and individuals filed lawsuits against the Navy, the
National Marine Fisheries Service ( now NOAA Fisheries ),
and other federal agencies.

The Navy
terminated the tests and convinced the judges to dismiss the
cases remaining as moot because the research was complete
and the Navy did not intend any further testing.

In March
2000, the Navy's research manager of the LFAS program sent
an email detailing plans to conduct further tests off the
Azores, Dominica, and possibly Hawai`i. An NMFS staff member
referred to this research as Phase IV of the SRP. The Hawai`i
County Green Party moved to reopen the suit it filed in 1998.

In response,
the Navy filed an affidavit from the program manager saying
that no such research was going to be funded or conducted.

In May
2000, Dr. Peter Tyack filed an application with NMFS to conduct
low frequency active sonar testing on whales in the Azores
to begin in July.

Neither
the application nor the Federal Register Notice of the application
prepared by NMFS referred to the testing as including low
frequency active sonars.

In August
2000, NMFS granted Dr. Tyack a five-year permit to conduct
such research. The permit allowed harmful impact on the whales
far in excess of anything permitted in the 1998 tests.

To summarize:

-- the
Navy conducted secret tests of a technology known to be potentially
harmful to cetaceans without obeying the applicable environmental
laws;

-- after
the existence of the technology and the testing program came
to public attention, the Navy conducted a minimal research
program examining only a few of the potential effects on a
very limited number of ocean species;

-- when
adverse effects became public and led to litigation, public
controversy, congressional calls to suspend the program, and
other undesirable impacts, the Navy backed out of directly
funding further research;

-- the
National Marine Fisheries Service cooperated with Dr. Tyack
to disguise the nature of the research and to permit the research
to be conducted far from U.S. waters. Dr. Tyack is required
to file a report only once a year. Locating the research in
the Azores and limiting reports to once a year means that
the network of individuals and organizations opposed to deployment
of this technology will be prevented from monitoring the research.

Having
begun as an illegal, secret program, LFAS surfaced briefly
to reveal its true nature. Woods Hole Oceanographic Institution
and NMFS then cooperated to take the program back into a semi-secret
level to avoid further exposure.

Tyack
Permit Request

Background

On May
15, 2000, Dr. Peter Tyack submitted an application to the
Office of Protected Resources, National Marine Fisheries Service
requesting permission to conduct scientific research "and
to enhance the survival and recovery of a stock under the
Marine Mammal Protection Act and the Endangered Species Act."
Cover letter from Dr. Peter Tyack to Ms. Ann D. Terbush dated
May 15, 2000.

This permit
request is submitted from Woods Hole Oceanographic Institution
( WHOI ). WHOI operates ships equipped with transducers capable
of playbacks similar to SURTASS LFAS in both frequency and
power levels. In the past, tests or experiments used WHOI
equipment to expose marine mammals to low frequency sonar.
The use of WHOI equipment permitted the U.S. Navy to take
the position that SURTASS LFAS was not being used in such
tests or experiments, e.g. the Navy position in federal court
regarding proposed testing off New York and New Jersey, known
as the LWAD 002 tests.

The history
suggests that WHOI is a surrogate for the Navy in such tests
or experiments. The close linkage between Dr. Tyack and the
Navy suggests Dr. Tyack is the facilitator to put the surrogate
in place. In the Scientific Research Program for SURTASS LFAS,
Dr. Tyack acted directly in concert with the Navy. In his
latest permit, Dr. Tyack shields the Navy from further involvement
in LFAS testing and removes the research from public view.

The notice
states that the permit application seeks permission to harass
various species of cetaceans in the North Atlantic and Mediterranean
Sea "during the course of research on the impact of noise
on marine mammals." The notice also states that the harassment
will include "playbacks of sound." These two references are
the only information regarding Dr. Tyack's intent to use sound
generating equipment impacting cetaceans. There are no references
to the frequencies to be used and certainly no mention of
low frequency sound.

It is
worth noting that this permit application was being submitted
in the midst of active litigation regarding the testing of
low frequency active sonar on cetaceans. On March 14, 2000,
the Hawai`i County Green Party filed a motion to reopen a
1998 case that challenged Navy LFAS testing. The Green Party
based its motion on an email from a research program manager
at the Office of Naval Research ( ONR ). The March 1, 2000
email stated that discussions were underway with Dr. Tyack
and others to conduct tests of LFAS on cetaceans in the Azores,
Dominica, and possibly Hawai`i. The basis for the motion to
reopen was that the Navy had represented to the court in 1998
that the LFAS research was complete and that no further testing
of LFAS would be taking place prior to the issuance of a final
EIS on the SURTASS LFAS system. Based on that representation,
the court had dismissed as moot the 1998 suit seeking to enjoin
such testing. The intent to resume testing LFAS appeared to
the plaintiffs to be a change in the Navy's earlier position
that warranted reopening the case.

On May
26, the Navy submitted a declaration from the ONR research
manager stating that the proposed research would not have
used the actual SURTASS LFAS system. Instead, the research
"would have used any one of a number of standard research
transducers."

The ONR
research manager stated that the research discussed in the
email "never got beyond the discussion phase." He further
stated that "to the extent any permits would have been necessary,
they were never obtained." He concluded that "the research
I referred to will not be carried out this year."

Yet ten
days earlier, Dr. Tyack had filed the application to begin
such tests in the summer of 2000. The appearance is that the
motion to reopen the 1998 litigation made the continued participation
of ONR too risky, so Dr. Tyack substituted WHOI for the U.S.
Navy to pursue the research that ONR said would not be conducted.

A month
later, the NMFS filed the Federal Register notice of Dr. Tyack's
application. At that time, the litigation had not been resolved.

Thus,
in March 2000, ONR was discussing with Dr. Tyack research
in the Azores into the impact of LFAS broadcasts on cetaceans.
After the filing of suit to reopen the 1998 case, those discussions
apparently terminated with Dr. Tyack pursuing the same or
similar research apparently relying on funding sources other
than ONR.

NMFS was
a party to the 2000 litigation. NMFS ( and their government
lawyers ) failed to mention to the court the application from
Dr. Tyack contradicting the ONR position that no such research
was going to take place.

The Permit
Request

The permit
request is dated May 15, 2000. In the cover letter, Dr. Tyack
apologizes for allowing "a little less than [ NMFS's ] six
months lead time." The letter states that the Azores fieldwork
is to begin on July 28. So the actual lead-time is just over
two months, rather than six months. Referring to this reduction
as "a little less" than six months is indicative of Dr. Tyack's
treatment of data to support his position, i.e. an application
providing approximately one third the amount of review time
requested by the agency is not late.

The NMFS
rejected a Navy application for sonar testing in LWAD 002
in part because the Navy failed to provide sufficient time
for review of that application. In that case, the time provided
was something on the order of thirty days. The LWAD 002 test,
however, had a very short duration. The Tyack permit request
is for a five-year period. The potential impacts of such a
long term program of exposure would seem to call for a higher
level of scrutiny, i.e. more than the normally requested six
month lead time. NMFS ultimately issued the permit on August
31, 2000, approximately three and a half months after the
application.

The expedited
treatment of this long-term permit is typical of the cozy
relationship between NMFS and the WHOI/Navy nexus. The issuing
officer for NMFS is Eugene Nitta. In 1998, Mr. Nitta was in
charge of enforcing an NMFS permit for SURTASS LFA testing
on Humpback Whales off Hawai`i. That permit required immediate
suspension of the testing, if an abnormal absence of animals
occurred. Mr. Nitta is the NMFS official who refused to order
the testing suspended when numerous whale watch boat captains
and shore observers reported that the whales had left the
testing area when the broadcasts began. Mr. Nitta was subsequently
promoted to the national NMFS office.

The Team

It appears
that Dr. Tyack assembled a highly qualified team of researchers
in the bioacoustic field. Some of these researchers had previous
involvement with the SURTASS LFAS SRP.

The Research

The essence
of the first phase of the research appears to be tagging animals,
establishing a base line of animal behavior, and then exposing
the animals to sounds to determine when avoidance behavior
takes place. Eighteen different species will be subject to
exposures from the playbacks. When the tags slough off the
animal, samples of skin tissue will be attached which will
then be analyzed.

The Playbacks

The information
about the proposed playbacks is remarkably limited. The maximum
proposed "sound exposure level" will be 160 dB. (p. 18) The
sound exposure level is presumably what is normally referred
to as the received level, i.e. the sound level reaching the
target animal as opposed to the sound level at the sound source.
Received levels will begin at 120 dB and be increased if no
"disturbance reaction" is observed. (p.18) This initial description
of the playbacks contains no information about the frequency
level, as opposed to the power level.
( p. 18-20 )

The second
description of the playbacks also contains no information
about the frequency.
( p. 24 ) This discussion does state that playbacks will be
targeted at Sperm Whales in the Azores and multiple species
in the Ligurian Sea. The Ligurian Sea is an arm of the Mediterranean
Sea between the islands of Corsica and Elba and the Riviera
coasts of northwestern Italy and Monaco.

The third
discussion of playbacks contains no frequency information.
( p. 26 ) This discussion does discuss the rationale for limiting
the exposure level to 160 dB in the Ligurian Sea. The SACLANT
Undersea Research Centre of NATO operates in this sea and
has adopted a 160 maximum as the level above which some harm
might result and below which there is low risk of harm. The
WHOI research will test this assumption below 160.

There
is no basis for assuming that 160 dB is a safe level of exposure
for cetaceans. Until a NATO LFAS exercise apparently killed
numerous whales in the Mediterranean and the Draft EIS justifying
deployment of SURTASS LFAS came out, the scientific community
routinely used 120 dB as the safe level of exposure. NATO
and the Navy assume a higher level to be safe and reinforce
each other. The existing evidence does not support raising
the safe level from 120 dB.

SACLANT/NATO
is the group responsible for studying the strandings of numerous
Curvier Beaked Whales coincident with a NATO use of LFAS.
Based on that experience, the effects of low frequency sonar
on cetaceans would be the central concern of SACLANT/NATO
and the 160 dB level would be most relevant to low frequency
impacts. The Tyack application does not discuss the LFAS connection
to SACLANT/NATO at this point in the application. In avoiding
that discussion, Dr. Tyack avoids explaining that in order
to test the SACLANT/NATO 160 dB assumption, the research will
have to use LFAS to be relevant.

Later
in the application, Dr. Tyack discusses the background and
current knowledge relevant to this project. (p. 28) In this
section, Dr. Tyack does note that low frequency sounds are
increasingly being broadcast into the marine environment.
"Loud low frequency sound sources are increasingly being employed
for long range sonar, research, and communications." He specifically
notes the "[l]ow frequency sonars for military use such as
the LFAS system used by the NATO SACLANT center" and the U.S.
Navy's SURTASS LFAS.

The background
discussion at page 28 is the first time Dr. Tyack addresses
the low frequency sonar issue. While discussing specific power
levels of such sound sources, Dr. Tyack does not address the
frequency ranges. As Dr. Tyack acknowledges, the "zone of
influence of a sound source depends upon its level, its frequency
spectrum, and upon the conditions for sound propagation near
the source." (p. 28)

In his
next discussion of the playbacks, Dr. Tyack again restricts
his discussion to solely the power level of the broadcasts,
with no information about the frequency levels. ( p. 29-30.
)

The first
indication of frequency levels appears at page 31 where Dr.
Tyack refers to "Chirp upsweeps centered at 1kHz, 2.5kHz,
4kHz, 8kHz, 12kHz." As it turns out, the key word in that
description is "centered." As it also turns out, the representation
of 1kHz as the low-end center point is false.

The calculation
of the third octave band is complex as it involves logarithmic
calculations and a geometric mean. An approximate canlculation
is that the range would be from 766 Hz to 965 Hz. The
frequency range of the Sanders Model 30 is, therefore, either
completely or alsmost entirely in the low frequency range.
The treatment of this device is "centered at 1Hz" or "centered
at near 1 Hz" is obviously a deception intended to hide the
true, low frequency nature of the broadcasts.

The truth
begins to unfold when Dr. Tyack discusses earlier experiments
by Watkins, noting that Watkins used "a Sanders Model 30 sound
source to playback a phase-modulated signal covering about
a third octave band centered on 860 Hz to sperm whales in
the Windward Islands." ( p. 32 ) The customary delineation
is that anything below 1kHz is low frequency. Obviously, 860
Hz is low frequency. Dr. Tyack avoids providing the information
on the frequency range above and below the centering point,
other than describing it as a third octave band, leaving the
reader to research the frequency range that description represents.
The omission is part of avoiding any description of this research
as low frequency active sonar. Referring to chirp upsweeps
"centered at 1kHz" which are actually centered at 860 Hz is
similar to referring to a two-month lead-time as a "little
less" than the six months requested by the agency.

As to
the new permit application, Dr. Tyack stated that "[f]or playbacks
near 1kHz, we propose to use the same WHOI Sanders Model 30
source used in the initial Watkins playbacks, a source which
has a frequency response centered near 1kHz." ( p. 33 ) The
earlier "centered at 1kHz" is now "centered near 1kHz." Again
two months is only a "little less" than six months.

There
is nothing cynical about observing that Dr. Tyack is carefully
avoiding any admission that his research intends to broadcast
low frequency active sonar at whales. The Sanders Model 30
sound source is centered in the low frequency range. While
860 kHz may be "centered near 1kHz," as per Dr. Tyack's description,
860 kHz is obviously low frequency and is the centering point,
which means the source goes even lower. To describe this source
as "centered near 1kHz" is obviously an attempt to deflect
attention from the intent to use LFAS on whales.

Dr. Tyack
notes that one of the researchers involved in the current
application did previous research on Sperm Whales similar
to Watkins and found differing results. "By contrast Gordon
et al. ( 1996 ) played back similar stimuli at 75 Hz, 800
Hz, 1kHz, 2kHz, 3 kHz, and 4kHz to sperm whales in the Azores."
( p. 33 ). Dr. Tyack proposes to reconcile the discrepancies
between the Watkins and Gordon research. To do so would appear
to require using frequencies in the low frequency range.

Dr. Tyack
repeats the description of the research at page 34 as:

"playback
stimuli with frequencies similar to those used in the Gordon
et al. ( 1996 ) and Watkins ( pers com. ) playbacks. These
would include signals with center frequencies of 860 Hz and
1.2 kHz. These signals will have bandwidths of about one-third
octave." ( p. 34 ).

The permit
application contains extensive description of the Acoustic
Recording Tag, including the weight, length, width, height,
etc. ( p.36-37 ). There is no description of the Sanders Model
30, other than the limited information found in the text of
other discussions noted above. There is no information provided
anywhere in the application on the actual frequency range
of the source.

To return
for a moment to Mr. Nitta, before I had any of these documents,
I called Mr. Nitta to discuss the Tyack application and raised
the low frequency issue. Mr. Nitta said that Dr. Tyack would
not be using low frequency and read me the "chirping upsweeps"
reference starting at 1kHz found on page 31 of the application.
In the copy of the application I received from Mr. Nitta,
almost all the references to the Sanders Model 30 centered
at 860 Hz are either underlined or otherwise highlighted.
Obviously, Mr. Nitta knew that Dr. Tyack's research involved
LFAS and his telephone comments had sought to deflect my attention
from that fact. Had I abandoned by inquiry at that point based
his misrepresentations, I would never have discovered the
information presented in this paper.

The Permit

The most
obvious omission from the permit is any mention of frequency
ranges for playbacks. The permit is tied to the application,
so presumably Dr. Tyack is free to use the sound source at
any frequency he chooses.

Under
this permit, the researchers are permitted to harass animals.
In this case, harassment can include "interruptions of breeding,
nursing, or resting activities; attempts by a whale to shield
a calf from a vessel or human observer by tail swishing or
by other protective movements; or the abandonment of a previously
frequented area." ( p. 2, note 2. ) The limitation comes later
in the permit, to wit "an approach or specific research activity
must be discontinued if during the approach/activity either
target animals ( i.e. those being actively studied by the
researcher ) or non-target animals exhibit three instances
of harassment per day." ( p. 5 underlining in original ).

Under
the 1998 permit, any abnormal absence of whales or serious
disruption of their behavior would have been cause to immediately
suspend the testing. There was no "three strikes" permission
in the Hawai`i 1998 permit. There was no permission to seriously
disrupt cetacean behavior on a daily basis as long as there
were less than three such disruptions per day. This permit
appears to allow activities that would have been forbidden
completely in the 1998 testing. The new Tyack permit conditions
are a major expansion of what constituted permissible harassment
in 1998.

In the
Azores and Ligurian Sea there will be no Ocean Mammal Institute,
volunteer shore observers, or other citizens to watch over
Dr. Tyack's practices. We will have the same researcher (
Tyack ), who refused to suspend the Hawai`i testing when the
whales fled the test area, monitored by the same federal official
( Nitta ), who failed to enforce the permit conditions in
Hawai`i. We will also have a permit allowing far more harmful
activity to fall within permissible activity than did the
1998 permits.

There
is a large constituency of people very concerned about low
frequency sonar and its impact on marine life. Five lawsuits,
an international Internet network, numerous national environmental
organizations on record, and other elements of a widespread
opposition to the deployment of this technology are known
to the NMFS. Obviously a permit application for a five-year
research program impacting cetaceans with LFAS and permitting
harmful disruption at far higher levels than ever permitted
before would be a matter of great concern to that constituency.

I note
that NMFS provided me a copy of an August 2000 application
from the Scripps Institution of Oceanography for the operation
of a low frequency broadcast station on Kaua`i without my
having requested a copy. I assumed that represented an NMFS
acknowledgement that as the attorney who had filed three of
the lawsuits to date on LFAS, I had an ongoing interest in
the topic and would wish to file comments on any such application.
NMFS did not provide me a copy of the Tyack application
( nor to anyone I am aware of in the LFAS network ).

Clearly,
Dr. Tyack designed his application to hide the intended use
of LFAS and the NMFS Federal Register notice cooperated in
this deception. The apparent goal was to prevent concerned
citizens from knowing about or participating in the decision
process. The proof of that deception is that none of the organizations
or individuals concerned about LFAS had any input to the permit
decision-making process. The Federal Register Notice apparently
appeared so benign that these opponents of LFAS use saw no
reason to pursue the matter.

Perhaps
Dr. Tyack designed and applied for permits to conduct a research
program that is necessary to convince him and others that
LFAS is potentially harmful to cetaceans. Most of us believe
that the evidence is already convincing on that point. It
is hard to look upon this research as benign, however, in
light of the history to date. The obscure nature of the Federal
Register notice, the deliberate obfuscation in the permit
application, and the blank check in the permit itself all
suggest that the intent is to avoid public oversight and accountability.
That the research will take place out of sight and far from
any ability of our network to closely monitor what is happening
only increases our level of concern.

There
is even more cause for concern based on a Canadian Broadcast
Company report titled New
military sonar harms whales: scientist
This article cites Dr. Tyack as stating that the LFAS is no
more harmful to the whales than the noise from whale watching
boats. While there may be differences of opinion on the potential
damage LFAS can do to whales, there are few in the scientific
community who could compare the power of LFAS with the noise
from a whale watch boat.

In the
past, Dr. Tyack attempted to walk the line of keeping his
scientific integrity while interpreting his results in a manner
designed to avoid alienating his potential naval funding.
Dr. Tyack appears to have gone over completely to the Navy's
position. The objectivity of his research is thereby further
compromised.

With the
obvious interest of citizens and organizations internationally
and members of the U.S. Congress in the LFAS program, the
actions of Woods Hole Oceanographic Institute and the National
Marine Fisheries are a disservice to the public and the public
interest.